A New Revelation - A Renewed Hope for Resolution

By Louis Sportelli, DC

Back in October 2004, a U.S. District Court Judge in Washington, D.C. rendered an opinion that alarmed a significant portion of the chiropractic profession. For 32 years, chiropractors had labored under a Medicare law that limited them to "manual manipulation of the spine to correct a subluxation." For some 25 years, the benefit had been further burdened with the unnecessary requirement that X-ray proof of the "subluxation" had to exist.

Slowly but surely, the medical doctors at the Department of Health, Education and Welfare (HEW), now called Health and Human Services (HHS), took steps that allowed physical therapists and generally, any medical doctor or osteopathic doctor who was licensed in the state, to perform manual manipulation services. No steps were taken to force Medicare HMOs to provide the legally mandated service.

Of significant interest is the fact that when senior citizens could choose their provider, a significant number went to chiropractors. As closed-panel Medicare managed care groups entered the picture, the use of chiropractic services began dying out. HHS even issued a formal but illegal "Policy Letter" proclaiming physical therapists, MDs and DOs could perform the service. When many Medicare managed care groups went to medical gatekeepers to enforce a "medically necessary" rule, utilization of the chiropractic service dropped by 85 percent.

Most of you know the American Chiropractic Association sued HHS in 1998 to try and bring some sanity back into the program. Immediately, HHS soon admitted in court that physical therapists could not deliver the service, and the illegal policy letter was amended. The HHS Inspector General performed a congressionally ordered survey and reported that Medicare gatekeepers reduced usage of the chiropractic service by 85 percent and that 20 percent of HMOs never used a chiropractor, period.

Finally, in October 2004, the U.S. District Court ruled that since MDs and DOs had universal (plenary) licenses, they were qualified to deliver the service and act as gatekeepers for the medical necessity of the chiropractic service.

The ACA appealed, and on Dec. 13, 2005, the chiropractic profession got an early Christmas present from the U.S. Court of Appeals for the District of Columbia in Washington. The Appeals Court ruled the District Court had no jurisdiction to render the decision approving the use of MDs and DOs to render the chiropractic service.

The Appeals Court also outlined the administrative route chiropractors and their patients should use, particularly in those 20 percent of Medicare HMOs that do not use any chiropractors, to have the issue of "qualifications" determined. A point not to be missed is the emphasis placed on "qualified" rather than "licensed," which opens up new avenues of education and expression for the chiropractic profession.

We all know of medical doctors and osteopaths who go to chiropractors for care. But there is much, much more that chiropractors should be aware of in challenging the "qualifications" of medical doctors and osteopaths to "manually manipulate the spine to correct subluxations." This is important, since the law mandates the inclusion of the chiropractic service in all Medicare programs. The senior citizen is entitled to the service. Over the years, much has been written about the qualifications of medical doctors relative to manual therapeutics, regardless of what kind we are talking about. Keep the following in mind when you speak with your Medicare HMO, your lawyer or the ACA office for guidance. While some of these references might be dated, they are nonetheless reflective of the decades of misinformation and mindset relative to the determination of "whom" should have jurisdiction over the musculoskeletal system. Every month, there are more and more journals reflecting similar views by those who would criticize the methodology used in many surgical determinations. Many of you who were practicing in the '70s and '80s may well remember some of these excerpts; for those who have been practicing for less than 20 years, this will be a wonderful historical refresher, bringing you some perspective from 1967 through 2005.

"The teaching in our medical schools of the etiology, natural history, and treatment of low back pain is inconsistent and less than minimal. The student may or may not have heard a lecture on the subject, he/she may have been instructed solely by a neurosurgeon, or the curriculum committee may have decided clinical lectures are 'out' and more basic sciences 'in.' The orthopedic surgeon, to his/her distress, often sees his hours in the curriculum pared to the barest minimum.

"At the postgraduate level, symposia and courses concerning the cause and treatment of low back and sciatic pain are often ineffective because of prejudices and controversy.

"These inconsistencies spawn disastrous sequelae: (1) patients operated upon after inadequate evaluation, (2) reliance by physicians on poor quality X-ray films, (3) surgery done only because of an abnormality in a myelogram without reference to plain films of the lower spine, (4) exploratory surgery upon the lower back done without sufficient clinical basis, (5) extensive surgery done for solely subjective complaints, (6) repeated attempts at spinal fusion - sometimes six or eight - by surgeons of limited experience, (7) surgery authorized by industrial accident commissions comprised exclusively of laymen, and (8) extensive removal of posterior vertebral elements by neurosurgeons, making stabilization of the lower portion of the spine technically difficult if not impossible."

"Even the abundant and significant advances resulting from the medical profession's emphasis upon research have failed dismally to relieve modern man of one of his most common and bothersome afflictions - low back pain."

Source: Dr. John Wilson Jr., chairman of the American Medical Association's Section on Orthopedic Surgery.'Journal of the American Medical Association, May 22, 1967;200(8):705-712.

"The Commission has found it established beyond any reasonable degree of doubt that chiropractors have a more thorough training in spinal mechanics and spinal manual therapy than any other health professional. It would therefore be astonishing to contemplate that a chiropractor, in those areas of expertise, should be subject to the directions of a medical practitioner who is largely ignorant of those matters simply because he has had no training in them."

Source: Royal Commission of Inquiry on Chiropractic in New Zealand, 1979.

"The Commission accepts the evidence of Dr. Haldeman, and holds, that in order to acquire a degree of diagnostic and manual skill sufficient to match chiropractic standards, a medical graduate would require up to 12 months' full-time training, while a physiotherapist would require longer than that."

Source: Scott Haldeman, DC, MD, PhD, Royal Commission of Inquiry on Chiropractic in New Zealand, 1979.

Q: "The musculoskeletal system comprises what portion of the body?"

A: "As a system, about 60% of the body."

A: "I think my testimony was that if you ask a bunch of new residents who come into a hospital for the first time how long they spent in studying the problems of the musculoskeletal system, they would, for the most part reply, 'Zero to about four hours.' I think that was my testimony."

"Even the defendants' [the AMA's] economic witness, Mr. Lynk [a Ph.D. economist], assumed that chiropractors outperformed medical physicians in the treatment of certain conditions and he believed that was a reasonable assumption."

Source: Susan Getzendanner, United States District Court Judge, 1987.

"Chiropractors get a boost and surgeons a setback in new government-backed guidelines on how to treat low pack pain."

Source: Chicago Tribune, Dec. 9, 1994.

"When it comes to lower back pain, think twice before resorting to the usual remedies - bed rest, prescription drugs and surgery. Try a chiropractor instead."

Source: Chicago Tribune, Dec. 8, 1994.

"The Agency for Health Care Policy and Research (AHCPR) recently made history when it concluded that spinal manipulative therapy is the most effective and cost-effective treatment for acute low back pain. Perhaps most significantly, the guidelines state that unlike nonsurgical interventions, spinal manipulation offers both pain relief and functional improvement."

Source: Annals of Internal Medicine, July 1998; published jointly by the American College of Physicians and the American Society of Internal Medicine.

"Second only to upper respiratory illness, musculoskeletal symptoms are the most common reason that patients seek medical attention, accounting for approximately 20 percent of both primary-care and emergency-room visits. Musculoskeletal problems were reported as the reason for 525 (23 percent) of 2285 visits by patients to a family physician, and musculoskeletal injuries accounted for 1539 (20 percent) of 7840 visits to the emergency room.

The delivery of musculoskeletal care is spread across a spectrum of practitioners, including not only orthopaedic surgeons but also internists, family physicians, and pediatricians, among others. Moreover, under the so-called gatekeeper model that is prevalent in managed-care systems, physicians other than orthopaedic surgeons will provide an expanding share of this musculoskeletal care. Mastery of the basic issues in musculoskeletal medicine is therefore essential for all medical school graduates.

"Nevertheless, seventy (83 percent) of eighty-five medical school graduates from thirty-seven different schools failed to demonstrate such competency on a validated examination of fundamental concepts."

Source: Journal of Bone and Joint Surgery, 1998.

"Cervical spinal manipulation effectively relieved headaches compared with control treatments in two studies of patients with headache and neck pain and/or neck dysfunction, but its effectiveness in patients with tension-type headache is less clear, since no placebo or no treatment control studies of manipulation have been performed in this population."

"Conclusions: According to the standard suggested by the program directors of internal medicine residency departments, a large majority of the examinees once again failed to demonstrate basic competency in musculoskeletal medicine on the examination. It is therefore reasonable to conclude that medical school preparation in musculo-skeletal medicine is inadequate."

Source: Journal of Bone and Joint Surgery, 2002.

"The Medical School Objectives Project (MSOP) is an initiative designed to reach general consensus within the medical education community on the skills, attitudes, and knowledge that graduating medical students should possess.

"The goal of medical education is to produce physicians who are prepared to serve the fundamental purposes of medicine. Physicians must possess the attributes that are necessary to meet their individual and collective responsibilities to society. If medical education is to serve the goal of medicine, medical educators must develop learning objectives for medical education programs that reflect an understanding of those attributes."

"In light of the increasing age of the U.S. population and an expected corresponding increase in the prevalence of musculoskeletal disorders, there is a growing concern that practicing U.S. physicians are ill-equipped to recognize and treat these conditions. To properly prepare the physician population, it is imperative that medical schools provide learning experiences that will allow students to gain an appreciation of the importance of these conditions and the challenges inherent in caring for patients who are so afflicted. Leading recommendations for learning objectives to instill the appropriate attitudes, knowledge and skills related to musculoskeletal medicine include: First and foremost, medical schools most foster an appreciation for the complex effects musculoskeletal conditions have on afflicted patients; students should be knowledgeable about the clinical manifestations, pathology, and pathophysiology of the common musculoskeletal conditions; medical students must be able to conduct a musculoskeletal physical exam and be capable of identifying common musculoskeletal diseases and conditions, and initiating appropriate treatment for these patients."

"The AAMC has published a Medical School Objectives Project report on 'Musculoskeletal Medicine Education' to coincide with the U.S. Bone and Joint Decade National Awareness Week, October 12-20, 2005. This report describes the basic learning objectives and educational strategies related to musculoskeletal medicine education in the undergraduate curriculum for all American medical schools.

"The mission of the U.S. Bone and Joint Decade (www.usbjd.org), part of a larger global initiative, is to raise awareness of the societal burden of unrecognized and under-supported musculoskeletal conditions, and to acknowledge the rising prevalence of these disorders as longevity increases for many of the world's populations.

"The expert panel convened by the AAMC to author this report strongly recommended the integration of musculoskeletal medicine throughout the curriculum in medical schools so that all graduating medical students will be able to aptly treat the many millions of patients with conditions effecting musculoskeletal systems."

Source: USBJD E-Newsletter, Oct. 10, 2005.

So, my colleagues, there you have it in a short article - an outline of the evidence to support chiropractic as the profession, which should determine the standards for a conservative manual approach to NMS conditions. We have the education and training; the MDs don't. At first, they didn't seem to care, until the AMA informed them that chiropractic is growing, millions of Americans are going to chiropractors, and "the chiropractors are stealing your money" (Dr. Sabatier, chairman of the AMA Committee on Quackery, to medical students). Then they discover that 82 percent of medical school graduates flunk a simple test on the musculoskeletal system and 20 percent of their patients, second only to respiratory ailments, have musculoskeletal complaints. It's a shame they don't want to utilize our vast storehouse of knowledge and prefer to mistreat rather than refer. Because of the Court of Appeals decision, we now have our chance to show the legislatures and the administrative agencies that we are "qualified;" they are not, to set the standards for what constitutes safe, competent manual manipulation of the spine. I am certain you will be asked by the ACA to undertake some action. Please pay attention to the request. This is one of the few opportunities the profession will have to help "determine the standards" and provide evidence to support the qualifications of the DC.

Perhaps the Court of Appeals has finally hit upon "scope of competence" and qualifications rather than the outmoded model of a plenary license being all the evidence that is needed to deliver a skilled service. Let us not take this opportunity lightly. Let us make a New Years' resolution to do what is necessary to ensure the fact that "qualifications" are important, not simply licensure.

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